Palfrey Proposes a New Digital Legal Information Environment for the Future (video)

Professor John Palfrey '01

Professor John Palfrey ’01

In a November lecture marking his appointment as the Henry N. Ess III Professor at Harvard Law School, Professor John G. Palfrey ’01 called for a new legal information system “grounded in a set of open data.”

Palfrey, who is also the vice dean for library and information resources at HLS, delivered the lecture to a standing-room audience of colleagues and students in the Caspersen Room in Langdell Hall, home of the Harvard Law School library.

Introducing the lecture, Dean Martha Minow noted that the award of the Ess professorship to Palfrey “is especially wonderful” because Ess, like Palfrey, was extraordinarily devoted to the collection and preservation of law books.

A 1944 graduate of HLS, Ess spent 50 years acquiring 30,000 legal books. He had to pour concrete floors in his Manhattan apartment to support their weight. His rare book collection was bestowed upon HLS, doubling the library’s own collection of legal books printed before 1501 and making Harvard’s the largest trove of early English law books in the world.

View the lecture.

“If Ess had the persistence and vision to collect special legal materials, John Palfrey has the persistence and vision to reinvent what legal materials will be like and how people will access them in this very exciting and challenging age,” Minow said. She said Palfrey had already made the library into “a laboratory that enables co-production of knowledge by faculty and students … and actually contributes to understandings in the broader Harvard University system as well as around the world about what is the future of the collection and distribution and sharing of knowledge. John teaches us how to visualize and invent the future.”

Palfrey summarized his chair lecture in an abstract published on his blog earlier that day: “I propose a path toward a new legal information environment that is predominantly digital in nature. … We should learn from advances in cloud computing, the digital naming systems, and youth media practices, as well as classical modes of librarianship, as we envision – and, together, build – a new system for recording, indexing, writing about, and teaching what we mean by the law.”

Palfrey explained how this new digital era grows out of a long history of evolution in the publishing of legal information over more than nine hundred years — “from the early manuscripts at the roots of English common law in the reign of the Angevin King Henry II; through the early printed treatises of Littleton and Coke in the fifteenth, sixteenth, and seventeenth centuries, (including those in the extraordinary collection of Henry N. Ess III); to the systemic improvements introduced by Blackstone in the late eighteenth century; to the modern period, ushered in by Langdell and West at the end of the nineteenth century.  Now, we are embarking upon an equally ambitious venture to remake the legal information environment for the twenty-first century, in the digital era.”

Palfrey elaborated on his main argument during the lecture: “I want to argue in favor of a new system of legal information … it’s emerging now, we can see it happening, but we see it happening in a desultory fashion. My argument is that we should have a new legal information system which is grounded in a set of open data, the basic point being that when a clerk writes a law opinion, or you have a scholar writing, it’s in a digital format in the first instance.”

The fact that legal opinions and information are printed out in the modern age is “in a way just an artifact,” Palfrey said. “It’s an effective way to read it, and we can certainly continue to do that. [However,] my argument is that we should in fact be presenting these data in a systemic way; in an open, stable, inoperable manner on which we can then build new things … [and] generate new meaning about the law.”

Palfrey detailed the positive contributions that a new legal information system could have on the legal profession.

“A new legal information environment, drawing comprehensively from contemporary technology, can improve access to justice by the traditionally disadvantaged, including persons with disabilities; enhance democracy; promote innovation and creativity in scholarship and teaching; and promote economic development,” he summarized in his abstract. “This new legal information architecture must be grounded in a re-conceptualization of the public sector’s role and draw in private parties, such as Google, Amazon, Westlaw, and LexisNexis, as key intermediaries to legal information.”

He acknowledged that a new information environment also will have unintended and sometimes negative consequences.

“This trajectory toward openness is likely to change the way that both professionals and the public view the law and the process of lawmaking,” he said. “Hierarchies between those with specialized knowledge and power and those without will continue its erosion.”

“Lawyers will have to rely upon an increasingly broad range of skills, rather than serving as gatekeepers to information, to command high wages, just as new gatekeepers emerge to play increasingly important roles in the legal process. The widespread availability of well-indexed digital copies of legal work-products will also affect the ways in which lawmakers of all types think and speak in ways that are hard to anticipate.”

Palfrey concluded by discussing how, unlike the physical library in Langdell Hall, the structure of the digital information environment has not yet been thoughtfully designed.

“My sense is that … we haven’t yet thought about the fact that our students do a lot of their learning in virtual environments; that our students just as frequently come in through our virtual front door as our physical front door,” he said. “I think what we need is a design charrette to build this new, thoroughly connected system of legal information for a hybrid age, for a digital-plus era.”

– Sarah Marston